Opinion
2008-355 S C.
Decided June 2, 2009.
Appeal from a final judgment of the District Court of Suffolk County, Sixth District (Howard M. Bergson, J.; Gigi A. Spelman, J., at trial), entered December 31, 2007. The final judgment, after a nonjury trial, awarded landlord possession and the principal sum of $5,790 in a nonpayment summary proceeding.
Final judgment modified by reducing the monetary award in favor of landlord to the principal sum of $3,577.50; as so modified, affirmed without costs.
PRESENT: TANENBAUM, J.P., MOLIA and SCHEINKMAN, JJ.
In November 2007, landlord commenced this nonpayment summary proceeding alleging rent arrears of $494.50 for October 2007 and $2,365 for November 2007, and demanding an award of attorney's fees and costs. At trial, the District Court permitted landlord to amend the petition to include a demand for the December 2007 rent. Charting its own course, landlord, through its sole witness at trial, construed its lease with tenant to require that upon becoming a month-to-month tenant at the lease's August 2007 expiration, the new rent would be based on the sum of (1) the monthly rent provided in the expired lease ($1,785), (2) a $100 increase, and (3) 20 percent of the premises' market rent, here alleged to be as high as $2,500 per month, for a total of $2,385, exclusive of late fees and other charges. Tenant did not contest this interpretation of the lease's rent terms, arguing only that he had paid landlord $1,905 per month, based on the rent reserved in a lease that he had timely renewed, which claims he again raises on this appeal. Landlord admitted receipt of two post-petition rent payments of $476.25 each and payment of the $175 process server's fee.
After trial, the District Court found that tenant failed to prove any further rent payments, declined to award the $100 monthly increment and any sum for the month of October 2007, and awarded landlord two months' rent at $1,785 per month, a $500 monthly rent increase based on a market rent of $2,500 per month, plus $1,220 in attorney's fees and costs, having evidently included therein the $175 process server's fee and a $45 filing fee, for a total award in favor of landlord of the sum of $5,790.
The record does not support tenant's claims that he renewed the lease and that all the arrears had been paid. However, without deciding whether landlord's construction of the rent provisions of the expired lease is supported by the plain language thereof, or whether those provisions are enforceable ( cf. Tai on Luck Corp. v Cirota, 35 AD2d 380), upon our review of the record, we also find that landlord failed to prove the market rent of tenant's apartment. Even were we to accept as sufficient the testimony of landlord's witness as to her expertise in rent appraisals, she offered no facts upon which she based her conclusions, on one occasion, that the market rent was $2,500, and on another occasion, between $1,950 and $2,200 per month. Accordingly, the record does not support the District Court's award of a $500 rent increase based upon its implied finding that landlord established a $2,500 market rent.
In light of landlord's proof and its construction of its lease, we do not disturb the District Court's determination that the base rent was as provided in the expired lease, i.e., $1,785, and that tenant should have been credited with an overpayment of $85 for the October 2007 rent which, along with tenant's two payments of $476.25, established that for the months of November and December of 2007, the base rent underpayment totaled $2,532.50. As landlord's counsel admitted at trial that the process server's fee had been paid, the sum awarded for attorney's fees and costs should have been $1,045.
Accordingly, the final judgment is modified by reducing the amount awarded in favor of landlord to the sum of $3,577.50. Tanenbaum, J.P., Molia and Scheinkman, JJ., concur.